European Court of Human Rights

 

FIFTH SECTION

CASE OF HASANOV v. AZERBAIJAN

(Application no. 59202/12)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

28 April 2022

 

This judgment is final but it may be subject to editorial revision.

In the case of Hasanov v. Azerbaijan,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Ganna Yudkivska, President,
          Lado Chanturia,
          Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 59202/12) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 27 August 2012 by an Azerbaijani national, Mr Bahruz Gazanfar oglu Hasanov (Bəhruz Qəzənfər oğlu Həsənov - “the applicant”), born in 1981 and living in Baku at the material time, represented by Mr R. Mustafazade and Mr A. Mustafayev, lawyers based in Azerbaijan;

the decision to give notice of the complaints concerning Articles 5 and 6 of the Convention to the Azerbaijani Government (“the Government”), represented by their Agent, Mr Ç. Əsgərov and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 24 March 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The present case concerns the applicant’s arrest, detention and conviction in the administrative proceedings against him on the charge of a failure to comply with the lawful order of a police officer. The applicant alleged that his rights protected under Article 5 § 1 and Article 6 §§ 1 and 3 of the Convention were breached by the domestic authorities.

2.  At the material time, the applicant was a bodyguard of the chairman of one of the opposition parties in Azerbaijan.

3.  According to the applicant, at around 2 p.m. on 11 July 2012, when he was on his way home, a person approached him on the street accusing him of having insulted his family. Following a conversation between the two of them, about fifteen plain-clothes police officers approached the applicant from the entrance lobby of one the nearby buildings. They asked him to go with them to a police station to “settle the matter” with the above-mentioned person. The applicant did not oppose the police officers’ order and was taken to the Surakhani District Police Office.

4.  At 4 p.m. on the same day the police issued a report of an administrative offence, stating that the applicant had committed an administrative offence under Article 310 (failure to comply with a lawful order of a police officer) of the Code of Administrative Offences (“the CAO”). However, no report of an administrative arrest was drawn up.

5.  On the same day the applicant was taken to the Surakhani District Court and appeared before a judge. According to the applicant, the judge hearing his case disregarded his request to be provided with a lawyer of his own choosing, and the private lawyer hired by his relatives to represent him was not allowed to attend the hearing. The District Court heard the applicant and two of the police officers who had participated in his arrest, and also heard the person who had had the verbal altercation with the applicant prior to his arrest. The applicant stated before the District Court that he had not committed an administrative offence and that his arrest had been politically motivated. The District Court found the applicant guilty under Article 310 of the CAO (failure to comply with a lawful order of a police officer) and sentenced him to ten days’ administrative detention.

6.  The applicant’s State-appointed lawyer lodged an appeal against the decision of the District Court. The State-appointed lawyer argued that the underlying purpose of the applicant’s arrest and detention had been to punish him for his political affiliation, and that first-instance court’s decision was not adequately reasoned.

7.  According to the transcript of the hearing, the applicant refused to be represented by a lawyer and stated that his refusal was not related to his financial situation.

8.  On 16 July 2012 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the decision of the District Court. The appellate court made no mention of the applicant’s particular complaints.

9.  The applicant complained under Article 5 § 1 of the Convention that the authorities had failed to demonstrate the existence of any exceptional circumstances justifying his administrative arrest and detention under Article 398 of the CAO, and that, in relation to his arrest and administrative detention, there had not been any factual basis for a suspicion of his having committed an offence. The applicant also complained under Article 6 §§ 1 and 3 of the Convention that he had not had a fair and public hearing, that he had not been afforded adequate time and facilities to prepare his defence, and that he had been denied access to effective legal assistance from a lawyer of his own choosing and the State‑appointed lawyer’s legal assistance had not been effective. The applicant further complained that neither he nor the private lawyer who had been engaged to represent him before the Baku Court of Appeal had been given access to a copy of the District Court’s decision in order to prepare an appeal.

THE COURT’S ASSESSMENT

I.        ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

10.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

11.  The applicable general principles under Article 5 of the Convention have been stated in Nasirov and Others v. Azerbaijan (no. 58717/10, §§ 46‑47, 20 February 2020).

12.  The Court notes that the legal issues raised by the applicant under Article 5 of the Convention in the present case are similar to the ones examined in Nasirov and Others (ibid., §§ 28-31) and the same laws are applicable to him.

13.  In particular, as in the above-mentioned case, the applicant was escorted to the police office for the compiling of an administrative-offence report. However, no reference has been made to any obstacles to drawing up the report at the place where the offence had been discovered. Similarly, no record of an administrative arrest was drawn up in respect of the applicant once he had been taken to the police office (see paragraph 4 above). Lastly, neither the domestic authorities nor the Government provided any specific reasons to the Court justifying the applicant’s administrative arrest, nor did they objectively indicate that without such a measure it would have been “impossible” to achieve the goals laid down in the relevant legislation, such as, for example, ensuring the expedient and correct examination of his case (ibid., §§ 48-50).

14.  The Court concluded in Nasirov and Others (ibid., §§ 51-52) that the applicant’s deprivation of liberty was unjustified, arbitrary and unnecessary irrespective of its duration, and it finds no reason to depart from the conclusion it reached in that case.

15.  It follows that there has been a violation of Article 5 § 1 of the Convention.

II.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

16.  Relying on Articles 5 and 6 of the Convention, the applicant complained that he had not committed an administrative offence and that he had not had a fair hearing. However, the Court considers that this complaint falls to be examined solely under Article 6 § 1 of the Convention.

17.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

18.  The Court notes at the outset that there is a significant degree of similarity between the legal issues raised by the applicant under Article 6 of the Convention in the present case and previous cases against Azerbaijan concerning the administrative convictions of applicants under the CAO (see, among many other authorities, Gafgaz Mammadov v. Azerbaijan, no. 60259/11, §§ 74-96, 15 October 2015; Ibrahimov and Others v. Azerbaijan, nos. 69234/11 and 2 others, §§ 93-115, 11 February 2016; Huseynli and Others v. Azerbaijan, nos. 67360/11 and 2 others, §§ 110‑35, 11 February 2016; Savalanli v. Azerbaijan [Committee], no. 30608/14, §§ 20‑24, 14 January 2021; Ibrahimov v. Azerbaijan [Committee], no. 39466/16, §§ 18-20, 14 January 2021; and Hasanov and Majidli v. Azerbaijan, nos. 9626/14 and 9717/14, §§ 33-41, 7 October 2021).

19.  In particular, as in the above-mentioned cases, the first-instance court in the present case referred only to the administrative-offence report and to the witness testimony of two of the police officers who had arrested the applicant, without giving any further reasons for its decision (see paragraph 5 above). The appellate court disregarded the applicant’s request for the police officers who had arrested him to be called to give evidence, and endorsed the findings of the first‑instance court without considering any other explanations or addressing the serious allegations raised by the applicant (see paragraph 8 above). In that regard, the Court reiterates its previous findings in the context of examining the fairness of criminal proceedings, that by ignoring a specific, pertinent and important point made by the accused, the domestic courts fall short of their obligations under Article 6 § 1 of the Convention (see Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 280, 21 April 2011, and Aliyev v. Azerbaijan [Committee], no. 76236/11, § 18, 11 June 2020). Taking the view that in the present case the domestic courts’ decisions lacked adequate reasoning, the Court concludes that the administrative proceedings against the applicant, considered as a whole, were not in conformity with the guarantees of a fair hearing under Article 6 § 1 of the Convention (see Gafgaz Mammadov, § 96; Ibrahimov and Others, § 115; Huseynli and Others, § 135; Savalanli, § 24, and Ibrahimov v. Azerbaijan, § 20, all cited above).

20.  Accordingly, there has been a violation of Article 6 § 1 of the Convention.

III.   REMAINING COMPLAINTS

21.  The Government submitted that the applicant’s complaints under Article 6 of the Convention concerning a public hearing, adequate time and facilities for the preparation of his defence and effective legal assistance were inadmissible on account of non-exhaustion of domestic remedies, as the applicant had failed to bring his grievances before the domestic courts in order to obtain redress for the alleged violation of his rights. The applicant did not make any submissions in reply concerning the Government’s objection as regards the exhaustion of domestic remedies.

22.  Having regard to the facts of the case, the submissions of the parties and its findings under Article 5 § 1 and Article 6 § 1 of the Convention, the Court considers that it has examined the main legal questions raised in the present application and that there is no need to give a separate ruling on the remaining complaints (see, among many other authorities, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania (GC), no. 47848/08, § 156, ECHR 2014, and the references cited therein; Mehman Aliyev and Others v. Azerbaijan [Committee], no. 46930/10 and 11 others, §§ 52-54, 20 May 2021; and Azer Ahmadov v. Azerbaijan, no. 3409/10, §§ 77-79, 22 July 2021).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

23.  The applicant claimed 21,000 euros (EUR) in respect of non‑pecuniary damage and EUR 3,300 in respect of costs and expenses incurred before the domestic courts and before the Court.

24.  The Government submitted that these amounts were unsubstantiated and excessive.

25.  The Court awards the applicant EUR 4,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable to him.

26.  Having regard to the documents in its possession, the Court considers it reasonable to award EUR 500 covering costs and expenses under all heads, to be paid directly into the bank account of the applicant’s representative, Mr R. Mustafazade.

27.  The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the complaints concerning Article 5 § 1 and Article 6 § 1 of the Convention admissible;

2.      Holds that there has been a violation of Article 5 § 1 of the Convention;

3.      Holds that there has been a violation of Article 6 § 1 of the Convention;

4.      Holds that there is no need to examine separately the admissibility and merits of the remaining complaints;

5.      Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid directly into the bank account of his representative, Mr R.  Mustafazade;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 28 April 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

            Martina Keller                                                 Ganna Yudkivska
          Deputy Registrar                                                      President